Another Brilliant Cipher For The Court?
For all I know Susan Carney is one of the law’s gems, a legal genius of rarefied intellect and Solomonic wisdom. Her resume is certainly impressive. Harvard College. Harvard Law School. Federal court clerk. Counsel to the Peace Corp. Yale University legal counsel. She glitters.
Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit. That worries me some. I go to court almost every day the courts are open and have for a good many years now. When someone is appointed to be a judge who is a stranger to the courtroom I worry. Doesn’t experience count for something?
I know, I know. I am not the standard. I am an uncouth barbarian by the standards of the clubby elites of the federal bar. I didn’t attend law school at the right schools. I never clerked for a judge. I never worked at a big firm. I don’t go to cocktail parties, bar group gropes or conferences staffed by judges opining on the view from Olympus.
But I reserve the right to assert that experience matters. The life of the law, Oliver Wendell Holmes, Jr., said long ago, is not logic, but experience. It makes little sense to place a brilliant technician in a seat requiring nuanced judgment.
President Obama’s recent judicial nominations leave a lot to be desired. We’ve got Elena Kagan slated for the Supreme Court, and Susan Carney for the Second Circuit. Neither appear to have spent appreciable time in a courtroom. When it comes to the law, all that glitters is not gold.
We need fewer brilliant theoreticians on the bench. The law is not some vast Platonic superstructure. Rather the law is simply the application of legal doctrine to a particular conflict. A judge who has never tried to manage a conflict for a client is merely a tourist in the courts, a surgeon who has operated on textbook drawings.
The bias in favor of appointing judges who have served time in the law’s status factories – the big-time law schools, federal clerkships, professorial positions -- reflects a view of the law two steps removed from the reality of conflict. Why not appoint a practicing public defender to the federal bench, someone who has represented ordinary people in conflict with the government?
Has anyone looked at Brian Carlow, Karen Goodrow, or any of a dozen other public servants who have spent decades in a courtroom defending people?
I am reminded all at once of why I found law school to be a period of vast and unremitting torpor. The professors stood before the class and kept harping about theory. What was the theory of this case? The theory of that case? What vision of the law was reflect in this opinion? How can the various doctrines arising in contemplation of the thousands of cases working their way through the courts be harmonized into some coherent whole? What is it that the law requires under this, that or the other circumstance?
Much though I love supple intellectual exercise, law school resembled a gymnastics class offered to amputees: Imagining the fun one could have with parts no longer present is just a tease.
Practicing lawyers meet people with problems. The landlord is tossing them from an apartment. They have been accused of rape. The government claims back taxes. In a courtroom these conflicts are decided by resort to evidence and law. The evidence consists of admissible facts; the law is mere doctrine that may, or may not, serve the interests of the parties in a dispute. It just isn’t any more complicated than that in a real courtroom, ever.
Judges without courtroom experiences build sand castles in the air. They follow visions of the good detached from reality of the hard work of justice. President Obama should do a better job with his nominees. Carney belongs at Yale, not on the bench.Reprinted courtesy of the Connecticut Law Tribune.